Peter Kagunyu Kiragu v Anne H.G Muchunku [2021] KEELC 2546 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT THIKA

ELC CASE NO. 805 OF 2017

PETER KAGUNYU KIRAGU........................PLAINTIFF

VERSUS

ANNE H.G MUCHUNKU..............................DEFENDANT

JUDGMENT

By a Plaint dated 19th October 2017, the Plaintiff sought for Judgment against the Defendant seeking the following orders;

a. An order of eviction over title  LR.No. Ruiru /Ruiru East Block 2/24631.

b. An order of permanent injunction restraining the Defendant, her agents workers, heirs, personal representatives or any other persons claiming  through her  from entering, trespassing  or in any manner whatsoever  occupying  Ruiru/ Ruiru East  Block 2/24631,24632, 24633, 24634, 24635, 24636, 24636, 24637, 24638, 24639, 24640, 24641, 24642, 24643 and 26644  in any  manner  inconsistent  with the Plaintiff’s Title.

c. Damages for Trespass

d. Aggravated Damages

e. Costs of the suit.

f. Interest on (c) to (e)  above at Court rates.

The Plaintiff averred that he is the registered proprietor of the suit properties. That  the suit property was borne out of subdivision  of a larger  property known as  Ruiru/ Ruiru East Block 2/4867,  in which he was also the registered owner. That upon Subdivision of the larger block into the 14 distinct parcels, they were demarcated with distinct   beacons outlining the boundaries  of each and he has been enjoying quiet possession prior and subsequent  to subdivision. That in October 2017, when he set out to inspect the properties, he found a semi-permanent structure on one of the suit properties and the beacons to their properties  vandalized and mutilated without his consent. He contended that the said acts amounted to trespass which trespass is continuing by the Defendant.

Further that the Defendant carried out the acts maliciously and out of spite for the Plaintiff with the intention of injuring his feelings. That he has suffered damages for the said trespass and incurred costs which he now claims for. He particularized special damages as Construction and affixation and surveyor fees.

The suit is contested and the Defendant filed a statement of Defence dated 9th February 2018,and denied all the allegations made in the Plaint. She averred that   she together with her sister  Judy Makena and her brother Fanuel Murage  are the registered owners of L.R 2/4867,  which property was given to them as a gift by their mother. That her mother purchased the suit property  in1996,through a bank loan and a sale agreement  was duly executed. That her family has owned and occupied the suit property for the last 21 years. The Court was therefore urged to dismiss the suit.

After Close of  pleadings, the matter  proceeded by way of Viva  voce evidence wherein the  Plaintiff called one witness and the  Defendant called two witnesses.

PLAINTIFF’S CASE

PW1  Peter Kagunyu Kiragu,adopted his witness statement dated  19th October 2017,  as his evidence.   He produced the Original title deed as Exhibit 1 and his list of documents as Exhibits  2 to 7.  He further produced the further list of  documents  filed on2nd July  2018,as Exhibits 8 to 11  and urged the Court to allow his claim.

That he bought the suit property from the shareholder one Esther Wairira,who had bought it from  Lucy Waithera  Kageni, but who did not have  a title deed, but she had a share Certificate from the original allottee. That Waithera is Deceased and the sons  did succession and then sold the suit property  to Esther Wariara in 1987. That the Sale Agreement is between  Esther Wairiara, who sold the land to Virginia Wairimu  on his behalf  in 2013, which he bought for Kshs. 1. 5 million . That he did not conduct a search.

Further that he paid Kshs.  30,000/=to Nyakinyua Investment to process the title deed, and the title deed was first processed in 2017, in his name. That he has subdivided the land into 14 portions and placed the beacons and the original title was4867, and the built up plot is  24631. That they attended the Land Control Board and he signed the transfer. That the land was owned by ladies and that was why the sale agreement was in his sister’s name.

DEFENCE CASE

DW1 Anne Hilda Gatakaa,  adopted her witness statement   and relied on it entirely. She further produced her list of documents as Exhibits 1 to 7 and the further list of documents as Exhibit 8. She testified that her sister and herself got the land from their mother, who purchased the suit property in  1996. That her  mother bought the land from  Teresiah  Nyokabi  on 5th March 1996,and title deed was issued on  16th May 1996, and a transfer  of land between the parties was done on 16th May 1996.  That she conducted a search in2011. Further that the suit property is in her possession and there is a tenant on the said property and the land is registered in her name, her brother and sister  and they  have been in possession for over 18years. That the tenants were on the suit property in 2013, and the land has never been transferred to anyone. That they have fenced the suit property and there is a gate and there are no new beacons nor has the Plaintiff ever subdivided it. She urged the Court to dismiss the suit.

That  she is the daughter of Mercy Kagendo,who lives in the U.S.Athough she did not have any documents to prove the same   and she went to the County Surveyor in 2017.   That their mother transferred the suit property to them and that the land was first owned by Teresiah  Nyokabi. That she reported the matter to the police once the case was filed. That the tenant is on a section of her property and the other section is leased for farming to her neighbor and he has also planted trees.

That her efforts to conduct a search were denied   and she has the green card which has the history of the land.

DW2 Robert Mugendi  Mbuba testified that he is  the Land Registrar Ruiru. That the Plaintiff was registered as proprietor of the suit property  and  a green card was opened on 28th March 2017,  in the name of Nyakinyua  Limited  and on the same day, it was allocated to Virginia  Wairimu Mahinda of I.D No.  [pariculars withheld, and she was issued with a title deed.  That thereafter the land was transferred to Peter Kagunya  Kiragu  on the same day and he was issued  with a title deed.  That on  30th August 2017,  the land was subdivided  to produce title Nos. 631 to 24644.

That there are two parcels files and the content of one parcel  file shows  there was an earlier title  in the name of Teresiah Nyokabi  and James Gitu. That the title was issued on 15th August 1994, and the record was opened  on 10th May 1988. That on 16th May 1996, it was transferred to Mercy  Kagendo,  and attached to the transfer are original title, consent to transfer dated 25th March 1996,  a charge in favour of   National Bank of Kenya  Ltd for Kshs. 500,000/= . That there is a consent to charge dated 25th April 1996,  in the same parcel file  and a discharge of charge. That there is a document from  Mercy Kagendo  to Fanuel Murage, Anne Hilda Gataka  and  Judy Makena. That the transfer was registered on 11th July 2002,  and it was document No. 142  of  July 2002, That there were original title deed for Mercy Kagendoconsent to transfer and official  paying receipts  No. 084038,  and there is a valuation report.  That there is a Caution  in favour of  Esther  Wariara Muturi  presented as  document No. 53 of  2012. That there was no indication whether it was registered.

Further, that there is another parcel  file with mutation form  which subdivided  L.R 2/4867, to produce 24631-24644 annexed to the mutation form  is the original title  of Peter  Kagunyi Kiragu. That there is an original consent to transfer and original Application form for consent. That there are Summons to the parties.  That he did not have a green card evidencing  the Certificate of Peter  Kagunya for  subdivisions and  he  produced the certified  copies as Exhibit 9. That the file was in their custody. That he did not have the green card forKahengeri that was opened on 10th May 1988, nor did he have the green card for the subdivisions. That  the Original title deed issued  to Teresiah Kahengeri and James Kahengeri and later transferred to Mercy Kagendo   has a similar signature  to what is in the parcel file  and also the date.  That he did not know which one was genuine and that there is no other Block 2 in  Ruiru.

Further that   parcel file No. 15 was in custody, but 2nd parcel file was not in custody. That folder 15 is for  generic  parcels of land. That the Defendant has o green card, though she has filed a copy. That there is a caution dated 28th  February 2012  before the Plaintiff got  a title to land but it was never registered  but it was paid for. That with regard to the Plaintiff, there is a green card from their office.  That there were Summons sent out but for   Anne Judy and Fanuel were returned though it was the address in the document.

Thereafter, the parties filed written submissions which the Court has carefully read and considered. The Court has also read and considered the pleadings, the evidence adduced relevant and the provisions of law.

It is not in doubt that both the Plaintiff and the Defendant are laying claim over the suit property. While the Plaintiff contends that  through his sister, he bought the Suit property from one Esther  Wairiara, the Defendant  also contends that together  with her siblings,  they got the suit property from their mother one  Mercy Kagendo, as a gift  and that their mother had bought the suit property from  JamesandTeresiah  Kahengeri.  DW 2, who is the Land Registrar, Ruiru testified that according to their records, there are two parcel files and that one of the parcel file which was in custody relates to land transaction  involving the  plaintiff and the other land parcel file  relates to the transaction involving the Defendant. It therefore follows that since there are two people laying claim to the suit property and it appears that  that they both have documentations relating to the suit property, the Court must determine who between the two has been able to show the root of his/her title and if in any case both title are genuine, then which one was the first in time. This is so because when a person’s title to property has been challenged, it is  incumbent upon the person to then show their root of title. See the case Hubert L. Martin & 2 Others …Vs… Margaret J. Kamar & 5 Others [2016] eKLR,where the Court held that;

“A court when faced with a case of two or more titles over the same land has to make an investigation so that it can be discovered which of the two titles should be upheld. This investigation must start at the root of the title and follow all processes and procedures that brought forth the two titles at hand. It follows that the title that is to be upheld is that which conformed to procedure and can properly trace its root without a break in the chain. The parties to such litigation must always bear in mind that their title is under scrutiny and they need to demonstrate how they got their title starting with its root. No party should take it for granted that simply because they have a title deed or Certificate of Lease, then they have a right over the property. The other party also has a similar document and there is therefore no advantage in hinging one's case solely on the title document that they hold. Every party must show that their title has a good foundation and passed properly to the current title holder.”

Further in the case ofMunyu Maina..Vs..Hiram Gathiha Maina, Civil Appeal No.239 of 2009, the Appeal Court held that:-

“We have stated that when a registered proprietor root of title is challenged, it is not sufficient to dangle the instrument of title as proof of ownership.  It is that instrument of title that is challenged and the registered proprietor must go beyond the instrument to prove the legality of how he acquired the title to show that the acquisition was legal, formal and free from any encumbrances including any and all interests which would not be noted in the register.”

The Plaintiff contends that through his sister Virginia Wairimu,   he bought the suit property from one Esther Wairira, who had bought the suit property from one  Waithira Kageni.The Plaintiff has produced in evidence  an Affidavit by Virginia Wairimu,  sworn on 16th February 2015. The Plaintiff has also produced in evidence a Sale agreement dated 5th May 1987, evidencing the purchase by Esther. The Plaintiff has further produced in evidence a receipt dated 1976, from Nyakinyua Investment, a transfer of ballot and a clearance letter whose date is not clear from Nyakinyua Investment  Company Limited,confirming that the  said Esther was the owner of the suit property. The plaintiff also produced in evidence a green card  produced by DW2 confirming that the green card was opened in 2017. Further that there was indeed a time when a caution was   issued in favour of  Esther and paid for  though there was no evidence whether it was registered.

The court is thus satisfied that the Plaintiff has been able to show the root of his title as his title emanated from  Nyakinyua Investment Limited.

The Defendant was also  required to show the root of her title. It is her evidence that  she got  the suit property from her mother who  had bought it from  James  and Teresiah Kahengeri. That the two had gotten the suit property from Emily Mbaire. DW2 testified that in their parcel file, a green card which is essential does not exist. That in the said file  there is an earlier title that was issued on 15th  August 1994, and that there is a caution in favour of Esther.For the Defendant to have a good title, it follows that she ought to prove that she got the title from a person who had good title. As per the green card produced in evidence by the Defendant , the initial owner of the suit property was one Emily Mbaire.No evidence has been produced as to how the said Emily Mbaire acquired the suit property. The Court therefore can not ascertain if she acquired through allocation directly from the government or from Nyakinyua Investment  company Limited. Further, it is not in doubt that  while the said  Emily Mbaire  allegedly acquired the suit property in 1988, Waithira Kagenihad already acquired the same as early as 1976, and sold the said suit property to Esther Wairiara in 1987.  Therefore as the suit property had already been located, it could not then be allocated again to the  said Emily Mbaire.

From the evidence adduced, the Court is satisfied that while the  Plaintiff has been able to show the root of his title and the acquisition of the same, the Defendant has failed to show how the initial owner in her alleged green card acquired the suit property.  Therefore the chain of her root of her title has been  broken.  In as much as her mother may have been a bonafide purchaser, it is quite clear that she bought the suit property from someone who did not have a good title and therefore could not pass a good title to her and subsequently to the Defendant. Further the Court is also satisfied that by the timeEmily was acquiring the suit property the same had already been allocated and thus could not be reallocated without cancellation and or following the due process, and thus  could not be reallocated.

The Plaintiff has sought for various orders including a permanent injunction and evictions of the Defendant from the suit property. The Court has already held and found that the Plaintiff has been able to prove the root of his title and therefore he is the rightful owner of the suit property. It is not in doubt that  Section 26 of the Land Act provides that a title  held  by a person to a property is absolute and indefeasible. However, it is also not in doubt that the same can be impeached if it is found to have been acquired unprocedurally.  In this instant the Certificate of title held by the Defendant was acquired unprocedurally and it must therefore be impeached.

Further Section 24 and 25 of the Land Registration Act provides   for the rights and  interests of  the owner of a property.  The Court having held and found that the Plaintiff is the rightful owner of the suit property and upheld his title, it is not in doubt that he is entitled to enjoy all the rights and privileges that appertain to the same  and consequently the  orders of eviction and permanent injunction sought are merited.

The Plaintiff has also sought for damages for trespass and aggravated damages. Trespass has been defined as unjustifiable intrusion of another person’s land.  The circumstances of this case are that the Court finds that the Defendant occupied the suit property based on the belief that she received the same as a gift from her mother who was an innocent purchaser for value. The Court finds that the Defendant’s possession of the suit property though unjustifiable, as at the time of possession it was  reasonably justifiable  and therefore the Plaintiff is not entitled to the orders sought.

Section 27 of the  Civil Procedure Act gives the Court discretion to grant costs. However, costs usually follow the event unless special circumstances present themselves.  In this instant case, the Court finds that by virtue of being an innocent purchaser, the Defendant should not be  subjected to costs. The Court therefore orders that each party should bear its own costs of the suit.

Having now carefully read and considered the pleadings, the  evidence adduced, written submissions and provisions of law, the Court finds and holds that the  Plaintiff has proved his case on the required standard of balance of probability and therefore is entitled to the orders sought. The Court finds the Plaintiff’s claim as contained in the Plaint dated 19th October 2017,partially merited and the same is allowed in terms of prayers  aand b only.  Each party to bear its own  costs of the suit.

It is so ordered.

DATED, SIGNED AND DELIVERED AT THIKA THIS 15TH  DAY OF JULY 2021.

L. GACHERU

JUDGE

15/7/2021

Court Assistant – Lucy

ORDER

In view of the declaration of measures restricting Court operations due to theCOVID-19 Pandemic, and in light of the directions issued by His Lordship, the

Chief Justice on 15th March 2020, this Judgment has been delivered to the parties online with their consents. They have waived compliance with Order 21 rule 1 of theCivil Procedure Rules which requires that all judgments and rulings be pronounced in open Court.

With Consent of and virtual appearance via video conference – Microsoft Teams Platform

Mr. Ocholla holding brief for Mr. Nyakeri for the Plaintiff

M/s Nchogu for the Defendant

L. GACHERU

JUDGE

15/7/2021